Ninth Circuit: Yassir Fazaga v. FBI

Concurrence with denial of en banc (starting at 108):

Statutory FISA ex pare in camera review speaks squarely to and therefore displaces the state secrets privilege.

Dismissal remedy not identical with the privilege.

Privilege is an evidentiary privilege, not a constitutional one.

FISA remedy not limited to when the govt is on the offensive, and the other party need not be a defendant.

Dissent from denial of en banc:

FISA review limited to discrete instances of admissibility in criminal prosecutions

Displacement of state secrets privilege by statute privileges the legislature within the balance of powers.

An executive privilege can have a Constitutional core.

FISA review limited to "such other materials," not every possible material.

Any department can invoke privilege, but only DOJ can invoke FISA.

Govt invocation of privilege insufficient for statutory trigger of FISA.

Yassir Fazaga v. FBI

Fourth Circuit: US v. Hinda Dhirane

No constitutional error in the FISA statutory process that substitutes review in the Executive Branch for a Franks hearing, as an unconditional adversarial process was appropriately modified in the interests of national security, and there was sufficient mitigation of the change.

Although it was unnecessary for the court to find that the defts were part of the organization to which they were sending funds, the finding amply supported the charge of providing material support.

For the sentence increase for funding a violent act, no nexus to a given violent act need be shown; the question is whether the deft believed that support would be used in an act of violence.

http://www.ca4.uscourts.gov/opinions/174205.P.pdf

Second Circuit: Petersen Energía Inversora, S.A.U., et al. v. Argentine Republic, et al.

Foreign corporation's bylaws requiring a tender offer for remaining shares after expropriation by the state were an incidental mechanism to the expropriation, and not the mechanism of the statutory expropriation.  Jurisdiction over claim arising from lack of subsequent tender offer is therefore proper under the direct effects exception to FISA.

Continuing government control of the corporation does not divest the court of subject matter jurisdiction, as the question of the enforcement provision of the tender offer requirement is commercial in nature, and has direct effects domestically.

http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/doc/16-3303_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/05194beb-c7ca-4533-89f8-3cdc4043f522/4/hilite/

DC Circuit: EIG Energy Fund XIV, L.P. v. Petroleo Brasileiro, S.A.

The domestic effects of the scheme were sufficient for jurisdiction under FISA, as damages were incurred before the foreign investors withdrew (which might have attenuated the causation), and the foreign locus of the investment vehicles used by the domestic investors does not preclude a finding of direct effects on the domestic investors.

https://www.cadc.uscourts.gov/internet/opinions.nsf/D7C9FB5343E0C109852582BF005095DA/$file/17-7067-1738941.pdf

Eleventh Circuit: Carmina R. Comparelli, et al v. Republica Bolivariana De Venezuela, et al

Claim captioned as an ATS claim but arising under FISA is properly construed as a FISA claim.

As FISA expropriation suits require factual correctness to state a claim, courts can pierce the pleadings.

Where a state distinguishes between nationals and foreigners among its permanent residents, the seizure does not implicate the domestic takings exception to FISA expropriation claims; in the case of dual nationals, the inquiry into residence is fact-specific.

An effects-based nexus under the commercial exception to FISA counters the presumption against extraterritoriality.

http://media.ca11.uscourts.gov/opinions/pub/files/201616748.pdf

DC Circuit: Rachel Fraenkel v. Islamic Republic of Iran

District court's reduction of damages in a FISA suit seeking solatium (consolation) damages against killers of family member because the victims were targeted on the basis of foreign citizenship was an abuse of discretion.  The appropriate amount, though, is still a matter of judicial discretion.

Similarly, error to reduce damages for assumption of risk, given that the purpose of the statute is to reduce terrorism, and the victims' conduct was reasonable.

https://www.cadc.uscourts.gov/internet/opinions.nsf/C60AD39892C8E38A852582A600521EC3/$file/17-7100-1735019.pdf